Milliken v. Byerly

6 How. Pr. 214

• Court: New York Supreme Court
• Decided: October 15, 1851
• Status: Published

Opinion

Mitchell, Justice.

The defendant demurs; and now alleges that the complaint should have shown a default in the purchaser.

This is not specifically alleged; but if the purchaser were not in default then he has paid the defendant, and then clearly the defendant is liable; if the purchaser is in default it is admitted that the defendant is liable. The commission merchant who is to sell and guaranty payment, and is to collect the debt himself, differs from one who merely guarantees a debt which the creditor is to collect; in this last case it may well be that a demand of the principal debtor is necessary to make the guarantor liable.

The allegation that the defendant has sold the goods, and that the whole is due, together with the account showing the sales to have been made on 1st October at eight months, show sufficiently that the whole cause of action accrued before 18th June 1851, when the suit was commenced.

. Judgment to be entered for plaintiffs on demurrer unless defendant make affidavit of merits showing the nature of his defence.